Wednesday, January 14, 2009

WASHINGTON -- The Supreme Court ruled Wednesday that evidence found after an arrest based on incorrect information from police files may be used against a criminal suspect.

In a 5-4 split, the court upheld the conviction of an Alabama man on federal drug and gun charges.

Bennie Dean Herring was arrested on what the Coffee County, Ala., sheriff's department thought was a valid warrant from a neighboring county. It turned out that the warrant for Herring's arrest had been recalled five months earlier.

Herring argued that police negligence should automatically lead to the suppression of evidence found after an unjustified arrest.

But Chief Justice John Roberts, writing for the court, said the evidence may be used "when police mistakes are the result of negligence such as that described here, rather than systemic error or reckless disregard of constitutional requirements."

In a dissent for the other four justices, Justice Ruth Bader Ginsburg said the ruling "leaves Herring, and others like him, with no remedy for violations of their constitutional rights."

Wrote Ginsburg: “Negligent recordkeeping errors by law enforcement threaten individual liberty, are susceptible to deterrence by the exclusionary rule, and cannot be remedied effectively through other means.”

The court also ruled 5-4 in a sentencing case that it does not violate a defendant's 6th amendment right to trial by jury when a judge sentences him to consecutive sentences, rather than concurrent sentences, based on facts not found or known to the jury. This would seem to mark an end to the string of sentencing decisions, starting with Apprendi in 2000 through Kimbrough in 2007, which came down in favor of the defendants.

The sentencing case is actually the more surprising of the two. If you look at the majority, we find Ginsburg, Alito, Breyer, Kennedy and Stevens on one side, Scalia, Roberts, Souter and Thomas on the other. Strange bedfellows, and a defeat for Scalia's admirable seven year drive to make sentencing more equitable and sane for criminal defendants.

The police evidence decision, however, isn't surprising. Unless there is some kind of new "Roberts Test" to differentiate, exactly, between "negligence" and "reckless disregard" in police conduct, I have no idea how one would prevent "systemic errors" and abuses from occurring when executing warrants. As Ginsburg footnotes on page 3 of her dissent, it's "not altogether clear how isolated these errors" are.